Merriam v. Swensen

42 Minn. 383 | Minn. | 1890

Gilfillan, C. J.

The main question in this case — that is, whether, at the time of defendant’s levy, the firm of Letcher & Valentine, the-former owners of the property levied on, had transferred it so as to vest the title in the plaintiffs — was, as the evidence stood, stating it most favorably for the plaintiffs, a question of fact for the jury. The written contract introduced did not pass the title. It was an executory contract, under which plaintiffs’ right to have the title pass to them depended on their payment of the consideration as agreed upon in the contract. Of course it was open to the parties to it to make a new contract, changing the conditions upon, which the title'should pass, or the vendors might waive the performance of those conditions as precedent to the passing of the title. The evidence was not clear that the parties intended any such new contract or that the vendors intended any such waiver. It is putting the case very strongly in plaintiffs’ favor to say that it tended to prove such new contract or waiver. All that was said and done subsequent to the executory contract might well be referred to it, and to a performance of it according to its terms.

The testimony as to what was said by Yalentine, one of the vendors, when they were taking the inventory, was admissible. It did not-appear that at that time there had been any actual, visible change of possession under the contract to sell. The goods were still in the-store of the vendors. Yalentine and their employes, with a son of.' one of the plaintiffs and an appraiser acting for the vendors and vendees, were handling the goods for the purpose of taking the inventory. The ease comes within .the rule admitting the declarations off a vendor of goods while remaining in possession and characterizing his possession. They are admitted as part of the res gestee, as part of the act of possession, and may be admitted to show in what character the party is in possession, that his continued possession is a owner, and to disprove an alleged sale depending on change of possession; to impeach a merely colorable or constructive change of possession.

Being regarded as part of the res gestee their admissibility is not confined to cases where -fraud in a transfer is alleged, though the question of their admissibility has generally arisen in such cases.

Order affirmed.